Hughes v. Lundstrum

168 S.E.2d 686 (1969)

5 N.C. App. 345

Lettie W. HUGHES v. Kendall Gene LUNDSTRUM. Tony James HUGHES, by his next friend, Lettie W. Hughes v. Kendall Gene LUNDSTRUM.

No. 695SC333.

Court of Appeals of North Carolina.

July 23, 1969.

*689 James, James & Crossley, by John F. Crossley and J. C. Wessell, Jr., Wilmington, for plaintiff appellants.

W. G. Smith, Wilmington, for defendant appellee.

CAMPBELL, Judge.

The first assignment of error was to the action of the trial judge in interrupting the direct examination of the plaintiff in order to permit defense counsel to conduct a voir dire examination in the absence of the jury. At the time plaintiff was in the process of describing to the jury what occurred immediately prior to the automobile striking the bridge. The defense counsel interrupted and suggested to the judge that on a previous trial, the plaintiff had testified pertaining to the accident and then on cross-examination had stated that he did not know those things of his own knowledge and the testimony had been stricken. The Court suggested that the voir dire examination be conducted in order to eliminate any incompetent testimony by the plaintiff.

In this, there was no error, for the trial judge, in the interest of a fair and impartial trial, must frequently conduct voir dire examinations in order to eliminate incompetent and prejudicial testimony before the jury which might otherwise necessitate a mistrial.

The second assignment of error was to the refusal of the trial court to permit the plaintiff to testify that his memory was not as good six months or a year after the accident as it was at the time of the trial. Any error in this regard was cured, however, by the fact that the court did permit the plaintiff to testify that when he was adversely examined in July 1968 by the defendant, he did not recall but about two-thirds of the facts pertaining to the accident. He was permitted then to testify that he was able to recall more now than he was at the time "because my memory came back to me". The plaintiff also testified, "Well when you have a loss of memory, well my loss of memory, after the accident a few months after the accident I could remember portions of it but not all of it and then as I familiarized myself with the area where the accident happened and thinking about it constantly, it comes back to me like pieces to a puzzle or something." Plaintiff also testified as to the length of time that he remained unconscious and his various head injuries.

The evidence which was thus admitted, eliminated any prejudicial effect of the evidence which the plaintiff was not permitted to testify. There is no merit in this assignment of error.

The third assignment of error by the plaintiff was to the effect that the trial court permitted the introduction of evidence as to the manner in which the plaintiff drove his automobile during the early part of the evening just prior to the accident.

In this regard, the plaintiff was asked on cross-examination whether he tried to induce drivers of other vehicles to race with him when he was driving the defendant across the City of Wilmington in the plaintiff's automobile in order to show the defendant how his automobile operated and to compare its speed with the speed of the Corvette. The defendant denied that he had endeavored to get others to race with him. He did admit, however, that he talked about the speed of his automobile when he was racing it. He denied, however, doing anything to demonstrate its speed to the defendant. The defendant testified over objection that the plaintiff requested him to take the plaintiff for a ride in the Corvette, and that the plaintiff "said he would like to see how my car turned on in comparison with his". The defendant also testified that when this conversation took place, the plaintiff was driving the plaintiff's automobile, and that he would drive *690 up to a stop light and then would accelerate fast when the light changed.

All of this evidence was relevant and material to show the background of what had been going on between the plaintiff and the defendant with regard to testing and demonstrating automobiles and their respective speeds and ability to accelerate shortly before the accident.

There is no merit in this assignment of error.

The fourth assignment of error was to the effect that the defendant was permitted to cross-examine his own witness.

This assignment of error is directed to the fact that sometime prior to the trial the defendant had taken the deposition of Earl Bucko, a witness for the defendant whose testimony the defendant desired to preserve in the event the witness could not be present for the trial. This witness was the defendant's companion at the time the defendant became acquainted with the plaintiff. The witness Bucko was present at the trial and testified on behalf of the defendant.

On cross-examination of this witness, plaintiff questioned him about the deposition and some of the testimony contained in the deposition. On redirect examination, this witness was asked if he recalled some of the questions that defendant's attorney had asked him at the time of the deposition, and his answers thereto. The court restricted this testimony to corroboration of the witness Bucko in the event that the jury found that it did corroborate him. This testimony did not constitute a cross-examination of the witness Bucko, and it having been restricted to the purpose of corroboration, there was no error.

This assignment of error is without merit.

The fifth assignment of error was to the refusal of the court to submit an issue of wilful and wanton negligence on the part of the defendant. Such an issue was tendered in apt time by the plaintiff, and the court refused to submit same.

The evidence on behalf of the defendant was to the effect that the plaintiff asked him several times to take him for a ride in the Corvette automobile in order that the plaintiff would have an opportunity to see it and experience a ride in it as the plaintiff had never ridden in a Corvette. The defendant at first refused to do so, but finally acceded to the request of the plaintiff. He took the plaintiff out for a demonstration and was requested on this trip on at least two occasions "to turn it on", and by that it was meant to speed it up. When requested the last time to "turn it on", the defendant was then driving about 60 to 65 miles per hour. Pursuant to this request, the defendant stated, "I just kicked it" meaning "I stepped on the accelerator". At that time, he did not know how close he was to the bridge. In the language of the defendant:

"Well, it accelerated and I saw the bridge coming up and I felt a bump, I didn't know what it was, but the back end of the car started drifting. * * * * * * "Well, there is a curve there and the back end of the car started sliding to the right. * * * * * * Well, I tried to correct it with the steering. * * * * * * Before I knew it the road narrowed down to two lanes and I was in the outside lane and I didn't realize that the lane ended before the bridge, and to get on the bridge, I would have had to move one complete lane almost to the left and the car was drifting to [sic] badly to make that much of a correction. * * * * * * I struck the bridge. *691 * * * * * * * * * everything went black, there was a lot of noise, I don't actually remember striking the bridge, the next thing I remember was sliding down the road on my back."

The defendant testified that he did not apply the brakes as that would accentuate the skidding and that he tried to get out of the skid by turning the front wheels in the direction of the skid, but that he did not have time to do so.

All of the evidence in this case taken in the light most favorable to the plaintiff reveals two young men very much interested in automobiles, particularly with with regard to the speed of automobiles and the respective performance of automobiles with regard to rapid acceleration. They had discussed these matters for nearly five hours. The plaintiff was familiar with the area where the automobile was being driven; knew that the particular automobile was designed for high speed and rapid acceleration; knew that the driver was not familiar with the area and the road conditions. With this background and knowledge, plaintiff still urged the defendant driver to demonstrate the Corvette automobile. The defendant driver did do as requested. Did this constitute wilful and wanton negligence?

In Wagoner v. North Carolina R. R., 238 N.C. 162, 77 S.E.2d 701 we find:

"`The term "wanton negligence" * * * always implies something more than a negligent act. This court has said that the word "wanton" implies turpitude, and that the act is committed or omitted of willful, wicked purpose; that the term "willfully" implies that the act is done knowingly and of stubborn purpose but not of malice. * * * Judge Thompson says: "The true conception of willful negligence involves a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another, which duty the person owing it has assumed by contract, or which is imposed on the person by operation of law. Willful or intentional negligence is something distinct from mere carelessness and inattention, however gross. We still have two kinds of negligence, the one consisting of carelessness and inattention, whereby another is injured in his person or property, and the other consisting of a willful and intentional failure or neglect to perform a duty assumed by contract or imposed by operation of law for the promotion of the safety of the person or property of another." Thompson on Neg. (2d Ed.), § 20, et seq.' Bailey v. North Carolina R. Co., 149 N.C. 169, 62 S.E. 912, 914. To constitute willful injury there must be actual knowledge, or that which the law deems to be the equivalent of actual knowledge, of the peril to be apprehended, coupled with a design, purpose, and intent to do wrong and inflict injury. A wanton act is one which is performed intentionally with a reckless indifference to injurious consequences probable to result therefrom. Ordinary negligence has as its basis that a person charged with negligent conduct should have known the probable consequences of his act. Wanton and willful negligence rests on the assumption that he knew the probable consequences, but was recklessly, wantonly, or intentionally indifferent to the results. Everett v. Receivers of Richmond & D. R. Co., 121 N.C. 519, 27 S.E. 991; Ballew v. Asheville & E. T. R. Co., 186 N.C. 704, 120 S.E. 334; Foster v. Hyman, supra [197 N.C. 189, 148 S.E. 36]; State v. Stansell, 203 N.C. 69, 164 S.E. 580; 38 Am.Jur., Negligence, Sec. 48. `In strictly accurate use, the terms "willfulness" and "wantonness" express different ideas and are clearly distinguishable, the distinction resting chiefly in the nature and extent of intent involved. It has been said that "the difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe *692 it will strike another, being indifferent whether it does so or not."' 65 C.J.S. Negligence § 9, p. 379."

It was not error under the facts of this case, for the trial court to refuse to submit the issue of wilful and wanton negligence tendered by the plaintiff.

Plaintiff relies upon the case of Pearce v. Barham, 271 N.C. 285, 156 S.E.2d 290 in support of the proposition that an issue of wilful and wanton negligence should have been submitted to the jury. The Pearce case is clearly distinguishable on its facts from the case sub judice. The charge of the court to the jury in the instant case was not brought forward and no error was assigned to any portion of the charge.

We find from the record as a whole that the plaintiff received a fair and impartial trial, and the case was submitted to the jury upon the issues raised by the pleadings and the evidence and under a charge to which no error has been assigned. In the trial we find

No error.

BROCK and MORRIS, JJ., concur.